Exhibit 10.33
OWENS & MINOR,
INC.
PERFORMANCE SHARE AWARD
AGREEMENT
THIS PERFORMANCE SHARE AWARD
AGREEMENT (“Agreement”) dated as of
, 200 between Owens & Minor, Inc., a
Virginia corporation (the “Company”), and
(“Participant”) is made pursuant to and subject to the
provisions of the Company’s 2005 Stock Incentive Plan (the
“Plan”). All terms used in this Agreement that are not
otherwise defined shall have the same meanings given to them in the
Plan.
1. Grant of Performance Share
Award. In accordance with the Plan, on
, 200 (the “Date of Grant”), the
Company granted to the Participant, subject to the terms and
conditions of the Plan and the terms and conditions set forth in
this Agreement, Performance Shares,
subject to adjustment as provided in Section 2 (the
“Performance Shares”). The Participant will earn the
Performance Shares to the extent that the requirements of
Section 2 are satisfied. The Company will issue shares of
Common Stock in accordance with Section 3 in settlement of the
Performance Shares, if any, that the Participant earns in
accordance with Section 2, which shares of Common Stock (the
“Restricted Stock”) will be further subject to the
vesting and forfeiture provisions described in Section 4
(except as otherwise specifically provided in
Section 3(b)).
2. Earning Performance
Shares. This Section 2 determines the number of
Performance Shares that the Participant earns under this
Agreement.
(a) Performance Criteria .
The Participant will earn Performance Shares based on achievement
by the Company of the following applicable level of compounded
annual growth in Operating Earnings (defined below) for calendar
years 200 and 200 (relative
to the Company’s Operating Earnings in 200
):
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Compounded Annual Growth
in Operating Earnings for
Calendar Years 200
and 200
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Performance Shares Earned
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%
(Threshold)
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%
(Target)
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%
(Maximum)
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If the compounded annual growth in
the Company’s Operating Earnings for calendar years 200
and 200 is greater than the
Threshold but less than the Target, then the additional number of
Performance Shares earned by the Participant in excess of the
Threshold level of Performance Shares will be determined based on a
straight line interpolation of the growth rate in excess of the
Threshold. If the compounded annual growth in the Company’s
Operating Earnings for calendar years 200 and
200 is greater than the Target but less than
the Maximum, then the additional number of Performance Shares
earned by the Participant in excess of the Target level of
Performance Shares will be determined based on a straight line
interpolation of the growth rate in excess of the
Target.
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Operating Earnings shall be defined
as the operating earnings presented in the Company’s
consolidated audited income statement for the applicable year,
adjusted to eliminate or exclude the after-tax effects of unusual
or non-recurring items, including but not limited to, the effect of
accounting and/or tax changes; tangible and intangible asset
impairment charges; fees, expenses and charges associated with debt
and/or equity financing transactions and merger and acquisition
activity (including the purchase or sale of a business unit or its
assets); gains/losses from asset sales not made in the ordinary
course of business; retirement plan gains/losses; and gains/losses
or charges associated with material litigation, regulatory, tax or
insurance settlements. Adjustments to Operating Earnings for
purposes of determining any Performance Shares earned hereunder
shall be taken into account only to the extent that they are
separately identified or quantified in the Company’s
consolidated audited financial statements, the notes to the
consolidated financial statements, “Management’s
Discussion and Analysis” in the Company’s Annual Report
on Form 10-K or in other Company filings with the Securities and
Exchange Commission. In addition to and notwithstanding the
foregoing, the Committee may make any adjustments in its discretion
that would reduce Operating Earnings for purposes of determining
the number of Performance Shares earned hereunder.
(b) Effect of Termination Prior
to Issuance of Restricted Stock . Except as provided in
subparagraphs (c) and (d), no Performance Shares will be
earned if the Participant’s employment with, and service to,
the Company and its Affiliates terminates or is terminated before
January 1, 200 or the date on which
Restricted Stock is issued as provided in
Section 3(b).
(c) Death or Disability .
This subparagraph (c) applies if the Participant’s
employment with, and service to, the Company and its Affiliates
terminates before January 1, 200 , on
account of the Participant’s death or permanent and total
disability (as defined in Section 22(e)(3) of the Code). In
the event of the Participant’s death prior to January 1,
200 , the number of Performance Shares earned
by the Participant shall equal the number determined in accordance
with subparagraph (a). In the event the Participant’s
employment terminates before January 1, 200
due to permanent and total disability, the
number of Performance Shares earned by the Participant shall equal
the number determined in accordance with subparagraph
(a) multiplied by a fraction. The numerator of the fraction
shall be the number of whole months that the Participant was
employed by, or providing services to, the Company or an Affiliate
during the 24-month period beginning January 1, 200
and ending December 31, 200
(including any period that the Participant was
absent from work for illness, injury or short term disability prior
to termination of employment) and the denominator shall be
24.
(d) Change in Control . The
Participant will earn the number of Performance Shares designated
for Target level of compounded annual growth in Operating Earnings
if there is a Change in Control before January 1, 200
.
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3. Settlement of Performance
Shares. The Performance Shares will be settled in
accordance with this Section 3.
(a) Committee Certification.
As soon as practicable after 200 (but no later
than March 15, 200 ), the Committee will
determine the number of Performance Shares that are earned under
the provisions of Section 2. The Committee’s
determination shall be set forth in writing, as part of the minutes
of a meeting of the Committee, by unanimous consent or otherwise.
Notwithstanding the preceding sentences, a written determination of
the Committee shall not be required in the case of Performance
Shares that are earned pursuant to the provisions of
Section 2(d).
(b) Issuance of Restricted
Stock. As soon as practicable after the Committee’s
certification under subparagraph (a) (but no later than
March 15, 200 ), the Committee shall issue
shares of Restricted Stock under the Plan in settlement of the
Performance Shares earned by the Participant. The number of shares
of Restricted Stock issued shall equal the number of Performance
Shares earned by the Participant. Notwithstanding the preceding
sentences, (i) if the Performance Shares are earned pursuant
to the provisions of Section 2(c), such Performance Shares
shall be settled in shares of Common Stock that are not subject to
the restrictions set forth in Section 4 and (ii) if the
Performance Shares are earned pursuant to the provisions of
Section 2(d), the number of shares of Restricted Stock
indicated in Section 2(d) shall be issued to the Participant
on the Control Change Date, and such shares of Restricted Stock
shall otherwise be treated as provided in
Section 4(c)(vi).
(c) Registration, etc. Shares
of Restricted Stock issued in settlement of the Performance Shares
shall be registered in the name of the Participant on the stock
transfer books of the Company but shall be held by the Company (or
its transfer agent) during the Restricted Period (defined below).
The Company’s Secretary and its General Counsel shall serve
as attorney-in-fact for Participant during the Restricted Period
with full power and authority in Participant’s name to assign
and convey to the Company any shares of Restricted Stock that
Participant forfeits under Section 4(c). Each certificate
representing shares of Restricted Stock may bear a legend referring
to the risk of forfeiture of the shares and stating that such
shares are nontransferable until all restrictions have been
satisfied and the legend has been removed.
(d) Dividends. Upon issuance
of shares of Restricted Stock in settlement of the Performance
Shares earned by the Participant, the Company shall pay Participant
in cash the amount of any dividends that would have been paid on
the Performance Shares prior to settlement if the Performance
Shares had been actual shares of Restricted Stock outstanding
during the period from January 1, 200
through December 31, 200 .
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4. Terms of Restricted
Stock. The shares of Restricted Stock issued in settlement
of the Performance Shares are subject to the following terms and
conditions:
(a) Restricted Period . Until
, 200 (the “Restricted Period”) or
the lapse of
